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This week South Carolina considered joining the line of states that are phasing
out exit exams as a requirement to graduate from high school. South Carolina
was an early adopter of exit exam testing, but this week the state House of
Representatives passed a bill to end the state's exit exam requirement. States adopted exit
exams to measure student learning by linking high
school graduation to performance on basic proficiency exams. Now 25 states are
considering severing the ties between exit exams and high school graduation, as
more data indicates that the exams have had little correlation with student achievement
and may also disadvantage students with special needs. The legislatures of
Alabama, Arizona, Georgia, and Nevada recently passed measures to end the use
of exit exams as a requirement for high school graduation, although some states
plan to continue using the tests as learning assessments. Valerie Strauss of
the Washington Post makes a case against high-stakes standardized testing in Why
schools should stop using exit exams; USA Today reports on the exit exam
trend in Exit exams may be on their way out. For more
information, click the right graphic to see George Washington University's Sept.
2012 report, State High School Exit Exams: A Policy in Transition.

The Fordham Urban Law Journal is soliciting articles for its upcoming special issue: New IDEAs: How to Adequately Educate Urban Schoolchildren with Disabilities. This issue of the Journal will address many of the shortfalls of the IDEA, as well as possible legal remedies or reforms that will help to support the IDEA’s goals. The journal is particularly interested in including articles that address, critique, or voice concerns over how the IDEA is currently applied in urban schools and articles that propose reforms or remedies so that urban school children will have an appropriate education, including: Funding (for example, disparities in federal, state, and local funding; reimbursement to parents for accommodations); Implementation of the Act (for example, hiring or assessing qualified special education teachers, overly bureaucratic procedures,or other administrative difficulties); Educational Quality between Districts, Cities, and Socioeconomic Groups; Judicial Review (for example, the requirement that parents must appeal to an administrative body first before they are given a right to appeal to a civil court); Early Identification and Intervention

If you are interested in submitting an article for publication, please submit a one-page proposal as soon as possible.Articles will be selected on a rolling basis. The Fordham Urban Law Journal requires articles to be between 10,000 and 25,000 words, including text and footnotes.

On May 28, 2013, the Colorado Supreme Court issued its opinion in Lobato v. State. Lobato involved a challenge to school inequities under Colorado's state constituion. The Supreme Court rejected plaintiffs' claim and overturned a lower court ruling in their favor. The court's opinion is unusual in that it held that the case was justiciable and that the state constitution imposed an adequacy standard on the state, but found that the state had met this standard. Most courts rejecting school finance claims have done so by refusing to reach the factual merits, finding that separation of powers concerns or the lack of a manageable adequacy standard precluded an analysis of the facts, or the courts have applied a deferential rational basis standard. Nothwithstanding extensive inequalities between school districts, the court focused on the fact that the state had a uniform funding formula in place.

Also curious is how fast the court reached its decision. The court heard arguments in early March and issued its 66 page opinion less than three months later. Given that the case involved a 5 week trial, the speed of its opinion is remarkable. I can't recall any court in recent years issuing an opinion that quickly. To the contrary, they often sit on them. Some may recall that South Carolina's Supreme Court sat on its school funding case for so long (nearly 3 years I think) that it ordered reargument. That argument was this past September and the court has yet to issue a decision.

Members of Congress who represent rural areas want to remedy Title I funding disparities for rural schools, the Hill congressional newspaper reports. Title I money disproportionately goes to urban
and affluent suburban areas and are not not responsive to the needs of rural areas, lawmakers argue. The Hill cites a study reporting that "the federal government
provides almost twice as much money per disadvantaged student in
Philadelphia, Pa., (population: 1.5 million) as in Philadelphia, Miss.,
(population: 7,500)." Lawmakers from rural districts plan to make funding disparity an issue if Congress takes up the overdue reauthorization of the Elementary and Secondary Education Act, which has stalled since the Senate passed the bill in 2011. Read more at the Hill.

Although I am quite sure I did not spur her, Cynthia Brown followed up my post on the U.S. Department of Education's Equity and Excellence Commission report with her own article in edweek. She chides the report for pointing out problems in school finance, but offering no solutions. Thus, in her article she offers three relatively simple, but bold, proposals. First, she proposes eliminating the four federal funding formulas currently in place and replacing them with "one formula that better targets schools with high concentrations
of students in poverty. This honors the law's intent of providing
additional education resources for children with the greatest
educational needs." Second, she proposes closing inequities within individual school districts, most notably by no longer exempting teacher salaries from equity calculations, which allows all of the highest paid and most qualified teachers to teach at the same schools. Third and most boldly, she argues that "States should adopt a state-based system of school financing—one in
which states provide all nonfederal resources for education, and
districts no longer have the power to raise funds from local property
taxes." As my scholarship in the past has suggests (see here), I believe Brown is on the right track. But I would reiterate my concern from yesterday that we not ignore segregation, as it is intertwined. Moreover, if we are too agressive in attempting to offset the costs of concentrated poverty, we could financially incentivize further segregation and decentivize integration.

Legal scholarship on education law covers the
waterfront this week. This week we note articles on affirmative action
jurisprudence, income disparity in education, and that Brigham Young
University's Education and Law Journal is out with several articles on
education law and reform.

Fisher v. University of Texas presents an Equal Protection
challenge to the University of Texas' race-preference admissions policy. In
this article, I am proceeding on the assumption that, in its decision, the
Court will not abolish affirmative action programs wholesale, if it addresses
the merits of Abigail Fisher's challenge. ... Based on the existing precedent,
the Court can decide the Fisher case in any of three ways. First, the Court
could avail itself of the opportunity presented by Fisher to expand the constitutional
permissiveness of considering race as a factor in admissions decisions. Given
that four of the eight justices deciding this case have made clear their strong
opposition to the use of race in this context, this scenario is highly
unlikely. At the other end of the spectrum, the Court could find that there is
no longer a compelling governmental interest in the use of race in the
admissions process, thereby causing the sun to set on affirmative action
admissions policies much sooner than Justice O'Connor predicted in her majority
opinion in Grutter. This is an equally unlikely scenario because four of the
Justices have already confirmed their commitment to the compelling governmental
interest in using race-preference policies to achieve viewpoint diversity. The
most likely outcome is that the Court will rule very narrowly, striking down
the UT program as not being narrowly tailored, while leaving intact the Court's
previously articulated finding of a compelling governmental interest in
diversity education. Thus, colleges and universities will remain free to
construct some type of race-preference admissions policy in an effort to ensure
diversity among their classes. Despite the Court's commitment to upholding the
narrow use of race in the admissions process, however, most institutions will
be unable or, more likely, unwilling to construct constitutionally permissible
race-preference admissions programs. ... For this reason, regardless of how the
Court decides, Fisher will ultimately be inconsequential to school admissions
decision-making and, therefore, will do little more than highlight the growing
irrelevance of affirmative action jurisprudence.

The fault for society's failure to adequately address income
disparity along racial lines does not lie exclusively with any one political
group or party. Both liberals and conservatives have permitted ideology to
cloud their search for meaningful solutions. If these solutions are to be
found, conservatives must discard ideological preconceptions in such areas as
abortion rights, family planning, and drug policy; liberals must likewise
discard ideology in their approach to tax policy, immigration, housing, and
education. Both conservatives and liberals must discard ideological
preconceptions and abandon politically seductive, but ultimately demagogic and
self-defeating policies relating to international trade, and residential
exclusionary policies, particularly in the areas of zoning.

In Misshaping the River: Proposition 209 and Lessons for the
Fisher Case, 39 Journal of College and University Law 53 (2013), William C. Kidder relates five lessons for Fisher
learned from California's affirmative action ban, Proposition 209. Kidder is
the Assistant Executive Vice Chancellor at UC Riverside, but notes that the
article expresses his personal views rather than the views of the University of
California. Below is an excerpt of Misshaping the River:

California's experiences with and responses to Proposition
209 bear on the Fisher v. University of Texas at Austin case with respect to
both questions of compelling interest and narrow tailoring. ... This article
advances the following findings and conclusions:

Lesson #1--At the University of California, which is subject
to an affirmative action ban, recent survey data from eight campuses confirms
that the campus racial climate is significantly more inhospitable for African
Americans and Latinos than at UT Austin and two other peer universities....
Relatedly, on the question of “critical mass” versus racial isolation that was
discussed at length during the U.S. Supreme Court's oral argument in the Fisher
case--and that was one key consideration taken into account by UT Austin in
devising its admissions program--the comparative data in this article suggest
that the threat of educational harm associated with racial isolation is very
real (particularly for African Americans) and should not be minimized or
overlooked.

Lesson #3--Affirmative action critics supporting Petitioner
are propagating two related myths about credentials and performance. First,
they scapegoat affirmative action as the overwhelming cause of racial/ethnic
differences in SAT scores at UT Austin and elsewhere, when this relationship is
quite modest for reasons stemming from the mathematics of admissions. Secondly,
the critics stubbornly insist that affirmative action causes substantial
“mismatch” effects on underrepresented minority student performance when in
fact there is a voluminous social science literature indicating that
affirmative action at highly selective institutions has a net positive effect
on graduation rates and other important outcomes.

Lesson #4--While some argue in favor of class-based
affirmative action in lieu of race-conscious programs, UC's atypically large
enrollment of low-income undergraduates is strong “natural experiment” evidence
verifying that class-based policies are not effective substitutes for
race-conscious policies.

Other articles this week address the future of legal
education. While we would normally leave articles on the legal education debate
to our colleagues at The Legal Whiteboard, we highlight a few this week that touch upon equity in
education.

In the article, Tamanaha confronts liberal legal academics
for "perpetuating the profoundly warped and harmful economics of legal
education" and encourages them to "take personal responsibility for
what has happened, and to engage in collective action to do something to alter the
economics of our operation."

The real Cassandra, however, is Professor Brian Z. Tamanaha,
whose apocalyptic book Failing Law Schools is a shrill call to arms, a
substantial work of powerful charges and dire solutions, well-written and
arriving at a crucial time in legal education, in the United States and
worldwide. I believe he holds powerful diagnostic skills and has a
storyteller's narrative, but I believe his solutions are substantially wide of
the mark, and would violate the code that remedial actions should, at the
least, do no harm. If he were simply overstating issues or being a provocateur
for the sheer sake of being one, as other critics have done, I would simply let
him stew in his own juices. But his devastating critique has a number of
accurate observations, ones I share, so laying out his arguments and his
critical architecture is necessary to see how the analytic second step--his
remedies--can be so wrong. Indeed, rather than merely noting his architectural
framework, I will note the arithmetic of his remedies, and attempt to show why
he should receive only partial credit for his math homework.

Today's law school graduates face
a grim prospect: more than half of them will not make a career practicing law.
Some of those graduates will enjoy jobs in fields allied with law, but many
will settle for work with little connection to the degree they earned. ... These
trends generate two gaps. The first is between the number of students earning
law degrees and the number of lawyering jobs available to them. The second is
between the tuition that students pay and the early-career salaries they
receive--if they are fortunate enough to find lawyering work. I explore these
two shortfalls, the job gap and the money gap, in the first and second sections
of this Essay. In the final section, I turn to an equally troubling lacuna: the
failure of law schools to acknowledge the harms their graduates are suffering.
This responsibility gap is one that we, as educators, have the power to bridge.
As I explore the shortfall between our schools' actions and our
responsibilities, I offer several concrete steps to close that gap.

In An Essay on
Rebuilding and Renewal in American Legal Education, 29 Touro L. Rev. 375
(2013), Jack Graves (Touro Law) describes ways to reduce risks and improve legal education
outcomes for the bottom half of students in the bottom half of all law schools.
Focusing on this group is essential to rebuilding legal education, Graves
writes, because "[t]his group represents 25% of current law graduates,
and, as a group, they almost certainly bear a disproportionate share of the
burden created by our broken educational model. While the suggestions that
follow will in some ways specifically target this “bottom quartile,” I believe
they would materially improve legal education for a substantial majority of all
prospective students."

Nearly two years ago, the Department of Education created a commission of experts to:

provide advice to the secretary of the U.S. Department of Education on the disparities in meaningful educational opportunities that give rise to the achievement gap, with a focus on systems of finance, and to recommend ways in which federal policies could address such disparities. The findings and recommendations of the commission do not represent the views of the department, and this document does not represent information approved or disseminated by the Department of Education.

The Commission released its report this spring and described its proposed strategy for reform as follows:

• First, we begin with a restructuring of the finance systems that
underlie every decision about schools, focusing on equitable resources
and their cost-effective use.
• Second, we examine the most critical resource of all: quality teachers
and school leaders, the supports they need to be effective with all
learners and ways to make sure all students have access to high-quality
instructional opportunities.
• Third, we explain the importance of starting early—making the case for
high-quality early learning for all children, especially for low-income
children, who need it most.
• Fourth, there is the matter of providing critical support—including
increased parental engagement, access to health and social services,
extended instructional time and assistance for at-risk groups—that students in high-poverty communities need to start strong and stay on track.
• And fifth, we lay out the changes in accountability and governance
necessary to ensure that, a decade from now, there doesn’t need to be
yet another commission appointed to call public attention to the
corrosive effects on the nation’s children and our future of the failure
to advance equity and excellence in America’s public schools.

These points recognize the problem of concentrated poverty, but the solutions focus exclusively on addressing the problem in place through money, programs, and the lack. Curiously missing is any mention of integration strategies. A few members of the Commission were interested in focusing more heavily on integration, but the fact that they lack significant support is a sad testiment to how far away from integration the conversation has moved.

The Leadership Conference Education Fund recently released a response report to the Commission. Integration was missing from its proposals as well. The absence in both reports of integration proposals is probably due to the Commission's core charge of addressing finance inequity, and a desire to not muddy the waters with other issues. While these practicalities are understandable, the assume that segregation and inequality can separated, which history and scholars tell us is false. As Jim Ryan most prominantly has argued, the achievement gap is caused by the intersection of school finance inequity and segregation, not finance inequity alone. Thus, solving finance inequity without touching segregation will not pay the dividends that policy makers expect.

The Washington Post reports that Alaska, Hawaii
and West Virginia have joined 37 states and the District of Columbia that have
received waivers from the Department of Education from provisions in the
federal No Child Left Behind (NCLB) law. NCLB requires K-12 schools to reach
certain reading and math proficiency levels by 2014.With NCLB's target date approaching, states fearful of
failing to meet their proficiency goals are requesting relief from the law's escalating
sanctions, ranging from school improvement plans to takeover and conversion to
public charter schools. Only five states--California, Montana and Nebraska, North
Dakota, and Vermont--are not requesting waivers. Eight states have pending
waiver requests. In 2009, Diane Ravitch and John Chubb discussed NCLB's
future as "the most ambitious legislation on K–12 schooling in American history"
in Education Next. Were they right?

The U.S. Supreme Court granted cert yesterday in a
government prayer case that could implicate religious expression during school board
meetings. In Town of Greece v. Galloway,
a New York town's practice of opening its legislative meetings with prayer--typically
conducted by Christian clerics--is being challenged. The Supreme Court will
review the Second Circuit Court of Appeals' holding that praying before town
meetings is a government sanction of religion that violates the Establishment
Clause. Lyle Dennison at SCOTUS Blog notes that the Court has said nothing about Elmbrook School District v. Doe, despite the case being on the conference calendar seven times this spring.

The school case
challenged the Elmbrook, Wisconsin Board of Education's renting a church for
high school graduations. Although the district's graduation exercises were
moved to a non-religious facility in 2010, the issue presented of whether school
districts may use religious facilities for school events remains unresolved. Last
summer, the 7th Circuit Court of Appeals held en banc that "an
unacceptable amount of religious endorsement and coercion occurred when the
District held important civil ceremonies in the proselytizing environment of
Elmbrook Church. The 7th Circuit noted that its decision was
narrowly focused to the facts before the court and that its ruling "should
not be construed as a broad statement about the propriety of governmental use
of church-owned facilities."

On Friday, the Nebraska Supreme Court in J.P. v. Millard Public Schools struck down a school's search of a student's car, which had turned up drug paraphernalia. Because the car was parked off-campus (across the street from the school), the court was able to distinguish the case from various other decisions that had upheld searches of student cars that are parked on campus.

Cases striking down student searches were nearly non-existent a decade ago, and now have begun to appear with some minimal level of regularity (at least in comparison to prior years). The U.S. Supreme Court in Safford Unified School Dist. v. Redding, 557 U.S. 364 (2009), struck down a strip search of a student. It followed that with a non-search, but related case, JDB v. North Carolina, in which it struck down the interrogation of a student on school grounds. Several state courts have also been willing to find searches unconstitutional on state grounds, even if not on federal grounds. York v. Wahkiakum Sch. Dist. No. 200, 163 Wash.
2d 297 (2008).

The recent Nebraska decision is easy enough to limit to its facts and, thus, would be relatively inconsequential. The same could be said of many of the other cases striking down searches. The quesion I continue to ponder is whether these cases represent examples where the courts have no choice but limit state action or whether the represent a willingness on the part of courts to gradually roll back the expansive power given to them in New Jersey v. TLO and which schools have argueably abused over the past two and a half decades.

As part of resolving Title IX complaints against the
University of Montana for its handling of sexual assault reports involving its student-athletes, the federal government announced
new definitions of sexual harassment designed "to provide clearer notice [to
students] of the conduct prohibited" on college campuses. The Departments
of Education and Justice co-authored a letter of findings to Montana, stating the
administration's intention to make the policies in the letter "the blueprint
for colleges and universities throughout the country." On Friday, the Foundation for Individual Rights in Education
(FIRE), criticized those new policies in a Wall Street Journal op-ed, pointing out that the administration's new sexual harassment
definition includes "any unwelcome
conduct of a sexual nature" including "verbal conduct." This
definition, FIRE argued, "makes virtually every student in the United
States a harasser."

The administration's standards might affect more than First
Amendment rights. Other language in the letter allows the university to
punish students for sexual harassment before the school's investigation or
resolution of the complaint. This new policy, FIRE noted, is far broader than
the standard set by the U.S. Supreme Court for student-on-student sexual
harassment in Davis v. Monroe County Board of Education. Below is the announcement about the University of Montana
agreement by deputy assistant attorney general Roy Austin Jr., DOJ Civil Rights
Division.

A little over a month ago, a coaltion of community members and local organizations in DC sued the DC Public School System in an attempt to stop the continued policy of school closings. Cribbing from the court's order:

"All fifteen schools on the final closure list lie east of Rock Creek Park, a historical dividing line within the city. East of the Park, residents are generally poorer and overwhelmingly black and Hispanic; west of the Park, residents are wealthier and mostly white. The halls of the closing schools reflect those demographics. In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."

The plaintiffs alleged that the plan was racial discriminatory, violated the rights of special education students, and that the process by which DCPS made its decision violated the city's notice requirements. Yesterday, the federal district court rejected plaintiffs' motion for preliminary injunction, finding that plaintiffs had a low likelihood of success on the merits. The district court's opinion is here:
Download School Closings --- Order.

In most respects, the opinion is a straightforward application of existing law and doesn't break new ground. Interesting, however, is the issue of what it means to discriminate in the context of facts where one knows a policy will affect only minorities. From the perspective of the Supreme Court's seminal opinion on the meaning of intentional discrimination in Mass. v. Feeney, one must act because of, not in spite of, disparate impacts. This principle makes a great deal of sense in the context of the facts of Feeney, where the state was seeking to benefit veterans, which is a legitimate goal. The only way to benefit veterans is "to benefit veterans."

The principle is not so obvious in the context of school closings where the district is picking which ones to close. There are necessarily multiple options and no obvious legitimate goal to benefit or burden any group. Ultimately, the district needs to operate fewer schools and closing any schools, including ones currently at capacity, can achieve that goal. Thus, the question is not necessarily which schools are the most underutilized, but rather, which students will feel the burden of school closing. When minority students are the only ones that feel that burden, one can legitimately ask whether the district would ever undertake a policy in which whites were the only ones feeling the burden.

You might also find in the subtext of the opinion the role of charter school growth in the closing of traditional public schools. Charter schools have rapidly expanded in minority communities in DC, and the under-enrollment in the schools slated for closure is closely connected to the growth of charter schools.

Aaron Saiger (Fordham Law) has posted Charter Schools, the Establishment Clause,
and the
Neoliberal Turn in Public Education on SSRN (Cardozo Law Review,
forthcoming). Saiger is not optimistic about states' abilities to control how
much public money goes to religious charter schools, writing that "[p]ractical
and constitutional constraints upon the regulatory tools that the neoliberal
paradigm makes available to states — rulemaking and exercising bureaucratic
discretion when approving and renewing charters — ensure that efforts to
abolish religion in charters will enjoy only partial success."

Promoting Language Access in the Legal Academy, recently posted
on SSRN, discusses innovations and best practices about language
access in the legal academy. Building on research and the ABA’s 2012
Standards for Language Access in Courts, the authors outline ways to include
language access in the law school curriculum and suggest bilingual instruction
as a language access strategy. The authors also describe how law schools can
expand the pipeline into the interpreter professions by training and deploying
bilingual college students as community interpreters. The article by Gillian
Dutton (Seattle University School of Law), Beth Lyon (Villanova University
School of Law), Jayesh Rathod (American University - Washington College of
Law), and Deborah M. Weissman (University of North Carolina School of Law),
will be in the University of Maryland Law Journal of Race, Religion, Gender and
Class, forthcoming.

Sara Solow and Barry Friedman (NYU Law) advocate changing
the ways law professors teach and discuss constitutional interpretation in
their article, How to Talk About the Constitution (Yale Journal of Law &
the Humanities, 2013). This article would normally seem more appropriate
for our colleagues at Constitutional Law Prof Blog, but is helpful for education law scholars because the authoris illustrate their constitutional interpretation model by making a case for a federal
right to a minimally-adequate education.

Speaking of Constitutional Law Prof -- they have a detailed breakdown of why the Louisiana Supreme Court struck down the state's school voucher funding scheme this week. Read more at Constitutional Law Prof Blog.

Know of other recent education law scholarship that we should share? Please send us a link.

Rick Kalhenberg and the Century Foundation are hosting "Bridging the Higher Education Divide:
Strengthening Community Colleges and Restoring the American Dream" next week in Washington, DC. See below for more details. The Century Foundation will be releasing its report on the subject there as well. For those who cannot make it, it will be webcast. I will update this post with the link when it is available.

--Derek Black

Bridging the Higher Education Divide:
Strengthening Community Colleges and Restoring the American Dream

Community colleges are more important than ever to American
economic competitiveness and social mobility, yet more than half of entering
students fail to receive a certificate or degree within six years. Many
fine efforts are being pursued to scale up best practices at community
colleges, but should we go further and rethink the basic ways in which two-year
institutions are financed and governed? Please join us for the release of
the report of The Century Foundation Task Force on Preventing Community
Colleges from Becoming Separate and Unequal. Learn more about the 22-member
Task Force, which was supported by the Ford Foundation and co-chaired by
Eduardo Padrón and Anthony Marx. The forum will feature:

Martha J. Kanter, Under Secretary, U.S. Department of Education

Anthony Marx, President, New York Public Library and Former President,
Amherst College (Task Force Co-Chair)

The Louisiana Supreme Court has ruled that the current method of funding the statewide school voucher program is unconstitutional. Act 2, part of Gov. Bobby Jindal's 2012 package of education reforms, diverts money from each student's per-pupil allocation to cover the cost of private or parochial school tuition. The act authorizes both the Louisiana Scholarship Program and the new Course Choice program.

States are busily passing voucher laws, but a few are running into problems with their state constitutions. Louisiana now joins Colorado and Florida in having school voucher laws declared unconstitutional under their state constitutions. The courts' rulings in Colorado and Florida were decided in part on religious grounds, and that part of the voucher debate is brewing in New Jersey and Pennsylvania.

Puzzled by the voucher controversy? The National Conference of State Legislatures has a primer on the voucher debate, as does Education Week.

As a followup to LaJuana's post last week, I see the New York Times is hosting a debate on the same topic, with commentary by Rick Kahlenberg, Patricia Williams, and John Brittain, among others.

These commentators are obviously bracing for the worst (depending on your perspective) in Fisher v. Texas, but Rick Kahlenberg and John Brittain offer suggestions on how to move forward with policies that ensure meaningful equity, both in terms of race and socioeconomics.

A few days ago, the Sixth Circuit in Spurlock v. Fox rejected a claim by an African American community challening Nashville's student assignment plan. Nashville's school district was under court ordered desegregation until 1998. The current challenge centers around the district's adoption of a neighborhood schools plan that retained some transfer options for students, but which retained few options and less integration.

An interesting aspect of the case was the plaintiffs' allegation that the mere consideration of racial demographics in adopting the new plan amounts to a racial classification that should trigger strict scrutiny. This same argument was recently made in Doe v. Lower Merion, 665
F.3d 524 (3d Cir. 2011), although there the challenge was to a racially integrative plan. Both Spurlock and Doe rejected this argument, relying on Justice Kennedy's controlling opinion in Parents Involved v. Seattle. Thus, the opinion, although a negative outcome for African American students seeking access to better schools in Nashville, is favorable precedent for school districts that want to consider racial demographics to create integrative assigment policies. The Spurlock opinion is available here: http://www.ca6.uscourts.gov/opinions.pdf/13a0135p-06.pdf

The case also raise key issues about equal access to quality educational opportunities and the meaning of intentional discrimination, which I will address in upcoming posts.

For every game last season at Kountze High School in Texas, cheerleaders made spirit banners with bible verses on them for football players to run through to the field. The cheerleaders were temporarily stopped from using the bible-verse banners, when Freedom from Religion, a group advocating church-state separatism, complained about the banners' religious content. Kountze Independent School District (KISD) Superintendent Kevin Weldon responded by banning displays of religious messages at school sporting events. On May 8, a Hardin County, Texas judge ruled that the cheerleaders' religious-themed banners did not violate the First Amendment. The Establishment Clause does not prohibit displaying banners with religious content at public school sporting events, Judge Steven Thomas wrote, or require that the KISD ban such banners. The harder question not answered in the opinion is whether the Kountze Independent School District can ban such messages. See KISD's press release on Matthews v. Kountze Independent School District.

Education News discusses California universities' efforts to maintain diversity after Proposition 209 and asks if diversity is worth the cost:

Those familiar with the Supreme Court are saying that it’s looking increasingly likely that affirmative action in college admissions is on its way out. The New York Times explores the ways in which states that are now looking for a different way to maintain diversity on their college campuses can emulate one of the first states not to use affirmative action at all – California. Read more at Education News.

An article about one
community's experience with parent-trigger laws was posted today by Yasha
Levine in Pulling
the Parent Trigger: The Push to Privatize Public Schools. Levine details
allegations that Parents Revolution, a movement favoring parent choice to
change a public school to a privately-run one, used heavy-handed tactics in
Adelanto, CA, to convince poor and undocumented parents to sign a parent-trigger
petition. The parent-trigger petition got enough signatures to convert the
local public elementary school, Desert Trails Elementary, to the first school
to be privatized under California's parent trigger law.

In answer to critics of the parent choice movement, T.
Willard Fair, CEO of Miami's Urban League, recently wrote an op-ed, Stop
blaming poor parents, empower them with school choice. In the Miami Herald, Fair
wrote, "I don’t care about the vehicle. I care about the result. And I’ve
found the result is much better when parents are allowed to make choices."
Fair is a former chair of the Florida State Board of Education.